I woke up on Monday, February 26 — the day the Supreme Court was set to hear oral arguments in the two biggest Internet law cases in two and a half decades — with a 102* fever and chills. It was (and continues to be) the flu. But even though I was listening (with the volume all the way up on my computer in bed because my ears were so plugged) through a feverish haze and the influence of Dayquil, I don’t think I had a considerably different experience than most others who were listening.
“My brain feels like mush,” texted a First Amendment Internet lawyer friend, who has sat through her fair share of crazy oral arguments. “Even after a nap, my head is spinning,” tweeted Alan Rozenshtein of
. Will Duffield simply summed up the crazy with this tweet meming the final argument of the Solicitor General of Texas:
But really I think that a few consistent things came through as the justices bounced all over the map with their questions.
I’m going to split these questions into two buckets, even though they were all jumbled up together in the course of arguments.
The first were the procedural issues to the ruling, things that might allow the Court to skirt hard questions by kicking the can down the road to another day. This was all the discussion about whether or not this was a facial challenge versus as applied challenges, the posture of appeal and the burden of appealing from preliminary injunctions, and the level of First Amendment scrutiny that should be applied. I’m going to save analysis of these for another newsletter, and ideally, an interview with Daphne Keller, who has forgotten more about the First Amendment than I’ll ever know.
But the second, and far more interesting thing that came through the cacophony was watching the Justices struggle with what everyone in Internet law has struggled with since it’s invention:
What exactly *is* this thing, the Internet, that we’re regulating?!
And because all humans — not just lawyers — reason through analogy, the Justices tried to find that right comparison that would fit to describe the huge swath of “websites” that Florida’s law might make common carriers or social media companies that were targeted by Texas. Let’s look at some of the most central ones that got referenced over and over.
The Four Internet Analogies of the Apocalypse
Etsy:Internet :: Booksellers:____?_____
“So let me talk about Etsy,” started Justice Sotomayor early on in the Florida oral arguments, struggling with how to define it:
“Etsy is a marketplace . . . I'm going to try to analogize it to physical space, which I think in this area is a little crazy, because [] yes, in some ways, this is like an online bookstore and online magazines, online newspaper, online whatever you want to call it, an online supermarket, but it's not because, even though it has infinite space, it really doesn't because viewers, myself included, or users can't access the millions of things that are on the Internet and actually get through them and pick the things we want because there's too much information. So we're limited by human attention spans. So are they. So our theories are a little hard, but let's look at Etsy. Etsy is a supermarket that wants to sell only vintage clothes, and so it is going to and does limit users' content. It's a free marketplace, it's open to everyone, but it says to the people who come onto its marketplace we only want this kind of product.”
Etsy came up over and over again in arguments, because it was an easy analogy to a bookseller, which the Court has long acknowledged has its own expressive right to decide what it sells and doesn’t sell. Bookstores are NOT common carriers, they need not sell ALL THE BOOKS in human existence, and as Sotomayor rightly points out, if they did, they would not be useful to us, because it would exceed our ability to process the options. We rely on the curation of the bookstore, and accordingly their right to do so.
If that all seems relatively straightforward, it lasted only a moment before it was muddled up again. Just minutes later, Etsy came up again, but this time in comparison to Uber.
Uber:Internet::Common Carrier:_____?______
It seemed at certain points that the Court didn’t hate the idea of regulating internet companies as common carriers, if indeed those entities were literally just like common carriers—much like an Uber would be to a train or a taxi service.
This was the point Justice Alito raised to Netchoice’s counsel Paul Clement. “How about Uber discriminating on the basis of viewpoint with respect to people that its drivers will pick up?”
After a few minutes of stuttering, Clement answered:
“I think the way the statute would apply to Uber, just to make clear, is it really would apply, like, on comments on the drivers or comments section on something like that if Uber wants to just sort of -- and -- and on Etsy, I think it's the same way. You know, Etsy has an ability for you to put comments on the seller and whether they did a nice job or a bad job.”
Everyone nodded their heads and seemed to move on without acknowledging that the _comments made by users_ on Etsy or Uber were not at all the point in question. Etsy, as invoked by Sotomayor was meant to delineate the comments it took down or kept up. It spoke to its ability as a store to decide what kind of material it physically sold or didn’t sell, or what kind of things it recommended to users or didn’t recommend; not the Internet comments on items it sold!
And Uber, as invoked by Alito was meant to evoke its actual role as a physical common carrier of people to and from places, not the Internet presence that facilitated that carrying of people.
Facebook:Internet::Shopping Malls:_____?______
One of the more contentious analogies among experts has been the analogy of certain aspects of the Internet, or certain platform as shopping malls. It stems from a case Pruneyard, which itself was confusing because it invoked both California’s State First Amendment laws as well as Federal, and acknowledged that the state of California could regulate the speech-hosting activity of a shopping mall. The case arose out of people trying to protest and picket and hand out leaflets in the common corridors of a shopping mall, but it has been extremely limited — as Justice Sotomayor was quick to point out:
“[We said California could regulate speech hosting activity] But not inside the stores. We said that they could come, but if they go inside the store, we didn't say anything that free speech -- that someone could stand -- stand on a platform in the middle of the store and scream out their political message. We said the common areas where we're permitting others to speak, we're going to let this particular speaker speak anything he or she wants.”
Again, the analogy is limited to where in the metaphysical space the Justices are seeing it be drawn. Is what’s being regulated the common space of malls, or is Florida’s law reaching into an Orange Julius and demanding they also serve Grapefruit Julius, and Cherry Julius, and Raspberry Julius, and Guava Julius? These are different PLACES, Sotomayor keeps reminding. These are different places.
YouTube:Internet::Newspapers : _____?______
Finally, there was Justice Alito’s question at the end of a long line of increasingly confused questions around YouTube’s editorial discretion that just ended with an almost desperate plea for understanding. To just simply grok this world he had spent 15 minutes interrogating counsel trying to understand:
“Let's say YouTube were a newspaper, how much would it weigh?”
The gallery and Clement chuckled, but Alito’s question was a coda to what had been a long day of the same thing: trying to figure out what exactly the Internet was in the world and what, physically, in meat space we could compare it to. It wasn’t a question that really wanted an answer — though ChatGPT generated one, estimating it would be around 432,000 lbs — it was what the question was grasping for:
The Longstanding Struggle to Place-ify or Thingificate the Internet.
For as long as we’ve had the Internet, we’ve had analogies and disanalogies to it as “space” or “place” or “thing.” Be it John Perry Barlow’s soaring and bloated rhetoric around cyberspace or the development of ICANN’s domain name structures that map onto geographic entities.
Or perhaps, as Orin Kerr famously argued using the now classic movie The Matrix, there are internal and external perspectives of the internet:
[W]e can think about the Internet in two ways, virtual and real. The virtual perspective is like the perspective inside the Matrix: it accepts the virtual world of cyberspace as akin to a reality. Of course, unlike Neo, we know all along that the virtual world that the computer generates is only virtual. But as we try to make sense of what the Internet is, to understand what we experience online, we might decide to treat that virtual world as if it were real…We can also understand the Internet from a different perspective. Like Neo when he is outside the Matrix, we can look at the Internet from the point of view of the physical world, rather than the virtual one.…From this external viewpoint, the Internet is simply a network of computers located around the world and connected by wires and cables.
I think that the internal and external perspectives offer the simplest most binary analogy for understanding the internet, and I think it was what the justices were struggling with yesterday.
The reality is that the logical puzzle that I left open is you have to think about the Internet as not a space or a single perspective but as the World.
Etsy:The Internet::Booksellers:The WorldUber:The Internet::Common Carriers:The WorldFacebook:The Internet::Shopping Malls:The WorldYouTube:The Internet::Newspapers:The World
But understanding those perspectives is just the first step.
Let’s say that we agree from the external perspective that a AbeBooks is a bookstore. It is not clear in what context we are talking about AbeBooks operating like a bookstore in any of these contexts!
After all, in the world, a bookstore can be a place to shop, a place of business, a place to sit, a community center, a coffee shop, a learning environment, a place of protest. It is what a law proposed to regulate a bookstore demands that narrows the salient qualities of the bookstore and delineates what functions we find most worthy of protection.
Simply choosing an external perspective only gets us one step there.
This is what the oral arguments yesterday prove in their very incoherence: there is no one analogy that we can make to “websites” or even “social media” companies or “platforms” just because they use the tools of the internet to exist. Just as we can’t find one analogy between bookstores and newspapers or shopping malls or telegraphs just because they both exist in the real world.
And that is what the takeaway of the Court should be:
A state law that lumps regulating taxis in with small independent stores, and Big Box Shopping Centers with telephone books, and library message boards with telephone calls, and the public square with a small town Cub Scout meeting, is likely overly vague.
I hope, at least, that that will be their takeaway.
xo,
KK
Thank you to Margo Williams for help listening and note-taking on yesterday’s Supreme Court Arguments and editing this draft for clarity.